Back
2004 Supreme(Cal) 120
High Court Of Calcutta
AMITAVA LALA
JATINDRA NATH MONDAL - Appellant
Versus
HARIMOTI DASSI - Respondent
S. A. 9 Of 1980
Decided On : 02/18/2004
ASHOK BANERJEE, DIPAK RANJAN MUKHERJEE, Monoranjan Das, SYAMASRI DAS
Adverse possession can be established as a defence, and the sister had acquired title to the suit property by adverse possession.
Headnote:
ADVERSE POSSESSION - RIGHT TO - SUIT FOR TERMINATION OF LICENCE - ADVERSE POSSESSION BY SISTER - ESTABLISHMENT OF ADVERSE POSSESSION - ADVERSE POSSESSION AS A SHIELD - SUFFICIENCY OF EVIDENCE - LEGAL ANALYSIS BY THE FIRST APPELLATE COURT.
Fact of the Case:
A brother filed a suit in 1967 to terminate the alleged license of his sister, who was occupying a portion of their father's premises. The sister claimed that she had raised the disputed structure and acquired title by adverse possession. The trial court dismissed the suit, but the first appellate court remanded the case for fresh disposal. The first appellate court, after considering the evidence, held that the sister had acquired title to the suit property by adverse possession.
Finding of the Court:
The second appellate court held that the first appellate court was right in holding that adverse possessory right has been created in favour of the sister by necessary implication.
Issues: 1. Whether the sister acquired title to the suit property by adverse possession? 2. Whether the first appellate court was right in holding that adverse possessory right has been created in favour of the sister by necessary implication?
Ratio Decidendi: 1. Adverse possession can be used as a defence, i.e., as a shield. 2. Adverse possessory right must be established by a consistent course of conduct and it cannot be shown by a stray or sporadic act of possession. 3. The possession must be open and without any attempt of concealment. 4. The sister was in occupation of the premises for 28 years admittedly. 5. The brother did not file any suit to challenge the sister's adverse possession within the limitation period.
Final Decision: The second appeal was dismissed.
( 1 ) THIS is a dispute between brother and sister. The brother originally instituted a suit as against the sister in 1967 allegedly terminating the licence of the sister in occupying the portion of the premises of their beloved father. Father, gostha Bihari Mondal, since deceased in 1941 or 1942 allowed her daughter, respondent herein to remain in the possession of the property with her husband Bepin chandra Das since accused. Father expired in between 1951 to 1952 survived by widow and the son and daughter as aforesaid. After 1956 (the crucial period for right of inheritance of the property of the famale heir) bepin, the husband of the sister/daughter of the predeceased, expired. The period of expiry of Bepin is about 1960.
( 2 ) THE suit which has been instituted by the brother for termination of the so- called licence of the sister was dismissed on contest by the Court of first instance from which an appeal was preferred. A remand order was passed by the Court of first appeal at the relevant point of time. From where a Second Appeal was preferred. By an order dated 2-7-1976 in the appeal from appellate decree No. 473 of 1972 the High court was pleased to observe that the positive case of the sister is that they had raised the disputed structure and was in possession thereof and they acquired title therein by adverse possession. No doubt the lower appellate Court disbelieved such story of the defence. "but I think that the judgment of the lower appellate Court is not a proper judgment inasmuch as it has not taken into consideration the material evidence on record and the pleadings of both the parties. On the other hand, it has proceeded on the footing that during the life time of goshta Behari Mondal, Bepin Chandra Das came into possession of the disputed room as a licensee and after the death of Goshta behari Mondal the defendant claimed to have continued their possession in the disputed room adversely. "
( 3 ) IN any event, appeal was allowed upon setting aside the order and matter was remitted back to such Court for fresh disposal in accordance with the provision of the law. The first appellate Court framed certain points for the purpose of due consideration. One of such points is "have the defendants acquired title to the suit property by adverse possession ?" Thereafter it was considered in the following manner. "it is not in dispute that the suit land in premises No. 115, Kali Charan Ghosh Road, originally belonged to plaintiffs father gostha Behari Mondal. The rent receipts for the year 1346, 47 and 48 B. S. (Exts. 2 to 2b) prove that Gostha was the tenant in respect of the land in premises No. 115. Kali charan Ghosh Road, D. W. 1 Harimoti, the defendant No. 1 also admitted her father's original title to the property by saying that he gave them the land in suit. The plaintiffs father Gostha died 18/18 years before the deposed on 28-7-1970. That takes us to 1951-52. In the four conerns of the plaint, it was not stated when the licence was granted to Bipin. Only in his deposition the plaintiff for the first time stated that he granted licence to the defendant No. I's husband 27/28 years ago. That takes us back to the year 1942-43. Therefore, in the absence of any reliable documentary evidence to prove the plaintiffs ownership of the suit property at the relevant time, his deposition that he was the owner of the suit property during his father's life time and was so competent to grant licence to Bipin cannot be accepted. There was no case also that the plaintiffs father granted licence to Bipin during his life time and after his death the plaintiff granted a fresh licence to him. The story of alleged grant of licence to Bipin thus fails to the ground. Admittedly, the defendants are in possession of the suit property for 27/28 years since the time of their predecessor in interest. We do not know how they came into occupation of the suit property, D. W. 1 harimoti stated in her cross-examination that her
